Legal Thought and Philosophy

Legal Thought and Philosophy

What Legal Scholarship is About

Bert van Roermund

Legal Thought and Philosophy clarifies background questions in legal research projects, such as the relationship between law and justice, law and politics, law and knowledge, facts and norms, normativity and validity, constituent and constitutional power, and rule and context. It provides advanced students in law and philosophy with an account of legal thinking that combines analytical and phenomenological insights.

Chapter 2: Justice, rights and human dignity

Bert van Roermund

Subjects: law - academic, legal philosophy, legal theory, research methods in law, research methods, research methods in law

Extract

Having rejected a naturalistic conception of self-preservation, along with its contractual architecture, I may well find myself double-trapped. Am I really saying that in order to pursue self-preservation we have to exercise autonomy, as the term self-determination suggests, and then that in order to exercise autonomy we have to touch base in self-awareness that is calibrated against reality? The first trap would be collapsing autonomy into heteronomy: Is something ‘other-than-me’ going to tell me who I am? We may try to avoid it by shifting to reverse gear and collapsing the meaning of self-awareness into self-determination after all. I shall investigate this hypothesis in what I take to be its strongest form: a model of social life that is radically based upon ultimate self-determination by every first person agent (section 1). Often I will simply use the (italicised) pronoun ‘I’ (and related pronouns) to indicate this perspective. At first sight, this model seems awkward indeed, as it appears to enthrone power in its most absolute and arbitrary form. Indeed, it takes us back to the point where the heptagon suggests proceeding from a contract of association towards a contract of authorisation if we really want to survive as masters of our own lives. But are these contracts inspired by a realistic conceptualisation of how power operates? What if we would learn from Machiavelli (and others) that power is exercised, first and foremost, by strategic self-restraint? Perhaps, generalised self- determination would usher in a relatively stable order in society, instead of producing arbitrariness and chaos?

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